Bangalore District Court
State Of Karnataka By; vs Thousif S/O Abubakar on 15 November, 2016
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 15th day of November 2016
PRESENT
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.1137/2016
COMPLAINANT : State of Karnataka by;
Girinagar Police Station, Bengaluru.
(By Learned Public Prosecutor)
- Vs -
ACCUSED : 1. Thousif S/o Abubakar,
Aged about 21 years,
Residing at No.143,
Near Noor Masjid, 7th Cross,
Near Tilak Nagara Police Station,
Tilak Nagara, Bengaluru.
2. Salman Pasha .....Split up
3. Jameel .....Split-up
4. Nawaj Pasha ......S.C.581/2016
5. Asiq .....Split-up
6. Nadeem Khan .....Split-up
(By Sri.S.G., Advocate)
2 S.C.1137/2016
1. Date of commission of offence 20-12-2012
2. Date of report of occurrence 20-12-2012
3. Date of commencement of evidence 03-11-2016
4. Date of closing of evidence 08-11-2016
5. Name of the complainant Sri.H.S.Marulappa,
6. Offences complained of Sec.399 and 402 IPC
7. Opinion of the Judge As per the final order
8. Order of sentence Offences not proved
JUDGMENT
This case is committed by the XXIV Addl.Chief Metropolitan Magistrate Court, Bengaluru City, to the Hon'ble Prl. City Civil and Sessions Court, Bengaluru on the ground that offences punishable under Sec.399 and 402 of IPC are exclusively triable by the court of Sessions.
2. The Police Inspector of Girinagara Police Station has filed charge-sheet against accused for the offences punishable under Sec.399 and 402 of IPC arising out of Indiranagar Police Station in Crime No.308/2012.
3. The brief facts of the prosecution case is as under: 3 S.C.1137/2016
It is the case of the Prosecution that, CW.1 who is the Police Inspector of Girinagar Police Station on 20-12-2012 at 8-30 p.m., when patrolling within the limits of their Police Station, received credible information stating that near Hosakerehalli, Sapthagiri Layout, 6 persons assembled armed with deadly weapons and making preparation to commit dacoity. Thereafter, CW.1 has called the CW.2 and CW.3 as Panchas and CW.4 to 10 and informed the information received by him to them thereafter CW.1, his officials and Panchas came near the spot and stopped some distance away from the spot and watched the spot, on the spot 6 persons assembled armed with deadly weapons by parking on Auto-
rickshaw. CW.1 has confirmed that information received is correct thereafter CW.1 and his officials have conducted raid and catch-hold 6 persons and CW.1 has enquired the persons, the said persons have told their names and addresses. The said persons also told that they assembled there for committing dacoity. Thereafter CW.1 has drawn the Mahazar and seized the deadly weapons and also seized the vehicle Auto-rickshaw by drawing Seizure Mahazar. Thereafter, CW.1 4 S.C.1137/2016 and his officials have brought the said persons to the Police Station along with properties to the Police Station. CW.1 has prepared Report and submitted the report before CW.11.
3(b) CW.11 who is the Police Inspector of Girinagar Police Station has obtained the report submitted by CW.11 and registered the case in Cr.P.C.No.308/2012 and submitted the F.I.R to the court. CW.11 arrested the said persons and recorded their voluntary statements and subjected the properties under P.F. CW.11 has recorded statements of CW.2 to 10. Thereafter, as investigation is completed, CW.11 has filed charge sheet against the accused for the offences under Sec.399, 402 of I.P.C.
4. After filing the splitted charge-sheet by the Investigating Officer against accused No.1, 2, 3, 5 and 6 as per the order passed in C.C.1899/2013 dated 23-04-2016 by the XXIV Addl.Chief Metropolitan Magistrate Court, Bengaluru, the XXIV Addl.Chief Metropolitan Magistrate Court, Bengaluru has taken cognizance and registered the case in C.C.10796/2016 and secured the presence of accused No.1 and furnished charge sheet copy to him as contemplated 5 S.C.1137/2016 under Sec.207 of Cr.P.C Accused No.2, 3, 5 and 6 are absconding and in spite of issuance of NBW against them on several occasions, the same returned unexecuted, so XXIV Addl.Chief Metropolitan Magistrate Court, Bengaluru has splitted the case against accused No.2, 3, 5 and 6 on 16-08- 2016 and directed the Investigating Officer to file separate charge-sheet against them. Thereafter, XXIV Addl.Chief Metropolitan Magistrate Court, Bengaluru has committed the case against accused No.1 before the Hon'ble Prl. City Civil and Sessions Court, Bangalore and that was registered as S.C.1137/2016 and made-over to this court for disposal according to law against accused as the offences alleged are triable by the Sessions Court.
5. After receipt of the papers this court has secured presence of accused No.1. Thereafter, this court has heard the counsel for accused and learned Public Prosecutor on charge to be framed. Charge under Sec.228 of Cr.P.C. framed against the accused No.1 for the offences under Sec.399, 402 of IPC and read-over to the accused in the open court and accused pleaded not guilty and claim to be tried.
6 S.C.1137/2016
6. Thereafter, Prosecution has called upon to prove the guilt of the accused by examining the Prosecution witnesses. Prosecution in order to prove the guilt of the accused beyond all reasonable doubt examined 4 witnesses as PW.1 to PW.4, got marked 3 documents as Ex.P1 to 3 and marked 6 material objects as MO.1 to 6 and closed its side. Thereafter, accused examined under Sec.313 Cr.P.C. to enable him to explain the incriminating circumstances appearing against him in the prosecution evidence. Accused denied the statement in toto and further stated that he has no defence evidence and he has nothing to say thereafter the case is posted for arguments.
7. Heard the arguments advanced by the learned counsel for the accused and learned Public Prosecutor on behalf of the state in length.
8. The points that arise for my determination are:
1. Whether the prosecution proves beyond reasonable doubt that accused No.1 along with accused No.4 and splitted accused No.2, 3, 5, and 6 on 20-12-2012 at 8.30 p.m. within the 7 S.C.1137/2016 limits of Girinagar Police Station at Banashankari 3rd stage, Hosakerehalli Chetty Babu layout in the open space of Sapthagiri layout, assembled armed with deadly weapons and making preparation to commit dacoity and thereby committed the offence punishable under Sec.399 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that accused No.1 along with accused No.4 and splitted accused No.2, 3, 5, and 6 on the above said date, time and place assembled armed with deadly weapons in order to commit dacoity and thereby committed the offence punishable under Sec.402 of IPC?
3. What order?
9. My findings on the above points are as follows:
Point No.1 : In the Negative;
Point No.2 : In the Negative;
Point No.3 : As per final order
For the following;
8 S.C.1137/2016
REASONS
10. POINT No.1 & 2: The above points are inter connected, hence they are taken up together for discussion together.
11. It is the case of the prosecution that the accused have committed the offences punishable under Sec.399 and 402 of IPC and in order to prove the guilt of the accused the prosecution has examined four witnesses and they are;
PW.1-Ramu N.L. son of Late.Lingegowda-ASI, PW.2- Veeresh Gururu son of Mallappa Gururu-Police Constable, PW.3-H.S.Marulappa son of Late.Shivarudrappa-complainant, PW.4-N.Divakaraiah son of Narayanamurthy-ASI.
12. The prosecution in order to prove guilt of the accused in all got marked 3 documents and they are;
Ex.P1-Two Photos of Auto, Ex.P2-Spot cum Seizure Mahazar, Ex.P3-Complaint.
13. Prosecution got marked 6 Material Objects and they are; MO.1-Long, MO.2-Club, MO.3-Knife, MO.4-Club, MO.5-Rope and MO.6-Chilly powder packet.
14. Prosecution in order to prove the guilt of the accused examined PW.1. PW.1 in his evidence stated that in 9 S.C.1137/2016 the year 2012 he was working as ASI at Girinagara Police Station. On 20-12-2012 he was having night duty on Hoysala- 84 and on that day he and CW.8 were working on Hoysala-84 vehicle and on that day at 8.00 p.m., CW.1 called him and CW.8 and told them to come near Mookambika Temple and accordingly he and CW.8 went there. There CW.1, 4 to 7 were present, CW.1 told them that he has received credible information stating that on the way to Sapthagiri Layout 6 persons assembled armed with deadly weapons by parking an Auto and making preparation to commit dacoity. CW.1 also called two Panchas and informed the information received by him to them. Thereafter, he, CW.1, other officials and Panchas came near the spot and they standing 100 Meter away from the spot observed the spot, on the spot 6 persons assembled armed with deadly weapons by parking Auto and they confirmed the information as correct and conducted raid and catch-hold 6 persons. He catch-hold one person and the said person told his name as Nadeem Khan and he was having chilly powder pocket, other officials have catch-hold other 5 persons and the said persons were possessing Club, Long, 10 S.C.1137/2016 Chopper. CW.1 asked the said persons why they assembled there and the said persons told that they assembled there for committing dacoity, thereafter CW.1 has drawn Mahazar from 9.30 to 10.30 p.m. in presence of Panchas and seized the deadly weapons and the Auto and thereafter they have brought the said persons along with the properties seized to the Police Station and identified the deadly weapons seized on that day as MO.1 to 6 and identified the Auto in Ex.P1-Photo. This witness has been cross-examined by the counsel for the accused and in the cross-examination this witness has admitted that he cannot say which official has catch-hold accused No.1 on that day.
15. Prosecution has examined PW.2. PW.2 in his evidence stated that in the year 2012 he was working as Police Constable at Girinagara Police Station. On 20-12-2012 he was on duty and at 8.00 p.m. he and CW.4 were on patrolling duty on 300 feet width road and at that time CW.1 called them and told them to come near Mookambika Temple, he and CW.4 came near the Mookambika Temple and there CW.1, ASI- Ramu, CW.8, CW.4, CW.6, CW.7 and two Panchas were there 11 S.C.1137/2016 and CW.1 told them that he has received credible information stating that on Sapthagiri Layout Main Road 6 persons assembled armed with deadly weapons and making preparation to commit dacoity. Thereafter, he, CW.1 and officials came near the spot, on the spot 6 persons were assembled armed with deadly weapons by parking an Auto and they confirmed the information and thereafter they have conducted raid and catch-hold 6 persons, he catch-hold one person and he told his name as Jameer @ Appu and the said person was possessing one Knife and the other officials have catch-hold other accused persons. CW.1 enquired the said persons and the said persons told that they have assembled there for committing dacoity of the commuters. Thereafter, CW.1 has drawn Mahazar and seized the deadly weapons and they brought the said persons and properties seized from them to the Police Station and identified the properties seized as MO.1 to 6. This witness has been cross-examined by the counsel for the accused, this witness has stated that he is not knowing the name of accused No.1, he cannot say the name of Panchas.
12 S.C.1137/2016
16. Prosecution has examined PW.3. PW.3 in his evidence stated that, during the year 2012 he was working as Police Sub-Inspector at Girinagara Police Station. On 20-12- 2012 at 8.30 p.m. when he was in the Police Station he received credible information stating that at Hosakerehalli Sapthagiri Layout 6 persons assembled armed with deadly weapons by parking Auto and making preparation to commit dacoity. He called Panchas and also called his officials CW.4 to 10 and informed the information received by him to them. Thereafter, he, his officials and Panchas came near the spot in Hoysala-84 and stopped some distance away from the spot and observed the spot, on the spot 6 persons assembled armed with deadly weapons by parking Auto and he confirmed the information and they have conducted raid and catch-hold 6 persons. He asked the names of the said persons, they told their names, they were possessing the deadly weapons and he asked them why they are assembled there, they told that they have assembled there for committing dacoity of the commuters. Thereafter, he has drawn the Mahazar from 9.15 to 11.15 p.m. and seized MO.1 to 3-articles thereafter they 13 S.C.1137/2016 have brought the accused along with the properties seized to the Police Station, prepared Report and submitted to the SHO. He has also produced the accused persons and properties seized along with the Seizure Mahazar before SHO and identified the properties seized as MO.1 to 6 and identified the Mahazar as Ex.P2 and complaint lodged by him as Ex.P1, identified the Auto seized in Ex.P1-Photo. This witness has been cross-examined by the counsel for the accused and in the cross-examination this witness has admitted that he cannot say what the said persons were talking among themselves, he cannot say which colour clothes were worn by the said persons. Further this witness has admitted that on the chits affixed to MO.1 to 6, signature of Panchas is not there. This witness has stated that he called his officials and Panchas to the Police Station, whereas PW.1 and 2 have stated that CW.1 has called them near Mookambika Temple which is contrary to the evidence of this witness.
17. Prosecution has examined PW.4. PW.4 in his evidence stated that in the year 2012 he was working as ASI at Girinagara Police Station. On 20-12-2012 at 8.30 p.m., 14 S.C.1137/2016 CW.1 called him and told him that he has received credible information stating that on Sapthagiri Layout Road in open space 6 persons assembled armed with deadly weapons by parking Auto and making preparation to commit dacoity. CW.1 also called CW.4 to 9 and CW.2, 3 -Panchas and stated the information received by him to them. Thereafter, they went near the spot and observed the spot, on the spot 6 persons assembled armed with deadly weapons by parking an Auto and they confirmed the information. Thereafter they have conducted raid and catch-hold 6 persons, he and CW.6 have catch-hold one person and he told his name as Thousif and he was possessing one Long and other officials have catch-hold other persons. CW.1 has enquired the said persons and they told that they assembled there for committing dacoity of the commuters. Thereafter, CW.1 has drawn Mahazar and seized the deadly weapons. Thereafter, they have brought the said persons along with the properties seized to the Police Station and identified the properties seized as MO.1 to 6.
18. It is the specific case of the accused during the cross-examination of prosecution witnesses that he has not 15 S.C.1137/2016 committed any offences as alleged against him, he has been brought from his house and implicated in this case only to harass him. In the present case PW.1 and PW.2 in their evidence have stated that CW.1 called them and asked them to come near Mookambika Temple and from that place they went to the spot, whereas CW.1 has been examined as PW.3 in this case has stated that he called his officials and Panchas to the Police Station and from the Police Station they went to the spot which is contrary to the evidence of PW.1 and 2. Further PW.1 has stated that he cannot say who catch-hold accused No.1. PW.3 in his cross-examination admitted that he cannot say what the said persons were talking among themselves on the spot, he cannot say what type of clothes were worn by the said persons. Further PW.3 has admitted that on the chits affixed to MO.1 to 6, signatures of Panchas is not there.
19. In the present case, prosecution has not examined CW.2 and 3-Panchas who alleged to have been accompanied the complainant for raid. Further prosecution has not examined the Investigating Officer in this case. Further the main case against accused No.4 in S.C.581/2016 is disposed 16 S.C.1137/2016 off on merits on 19-09-2016 and accused No.4 has been acquitted. Looking from any angle prosecution has filed to prove the guilt of the accused beyond reasonable doubt.
20. The learned counsel for the accused has relied upon the citation reported in AIR 1979 Supreme Court 1412 in Chaturi Yadav and others Vs. State of Bihar, wherein it has been held as follows;
"Penal Code (45 of 1860), Ss.399 and 402 - Conviction under - legality. Decision of Patna High Court, Reversed.
Prosecution evidence merely showing that eight persons including the appellant were found in the school premises which was quite close to the market at 1 a.m. and that some of them were armed with guns, some had cartridges and others ran away - Held that the conviction under Ss.399 and 402, was not sustainable - The mere fact that these persons were found at 1 a.m. did not by itself prove that they had assembled for the purpose of committing dacoity or for making preparations to accomplish that object - The possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence could not be safely eliminated. Decision of Patna High Court, Reversed."
21. From the principles laid down in the above cited rulings of our own Hon'ble Apex Court, it is clear that only 17 S.C.1137/2016 assembling the persons with deadly weapons itself will not prove that they have committed offence under Sec.399, 402 of IPC. As per the well settled principle of law, the benefit of doubt goes to the accused and in the present case accused is entitled for the benefit of doubt. In the present case looking from any angle, the prosecution has utterly failed to prove the guilt of the accused beyond reasonable doubt. The evidence of PW.1 to 4, Ex.P1 to 3 and MO.1 to 6 will not prove the guilt of the accused beyond reasonable doubt. Hence giving the benefit of doubt to the accused, I hold that prosecution utterly failed to prove the guilt of the accused beyond reasonable doubt. Hence, for the above discussion, I answer point No.1 and 2 in the NEGATIVE.
22. POINT No.3: In view of my findings point No.1 and 2 and reasons stated there, I proceed to pass the following:
ORDER Acting under Sec.235(1) Cr.P.C. accused No.1- Thousif Pasha is acquitted for the offences punishable under Sec.399 and 402 of IPC.18 S.C.1137/2016
Bail bond of the accused No.1 shall stands cancelled forthwith.
As the case against accused No.3, 5 and 6 is splitted, no order as to disposal of MO.1 to 6.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 15th day of November, 2016).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution:
PW.1 Ramu N.L. CW.9 03-11-2016
PW.2 Veeresh Gururu CW.5 03-11-2016
PW.3 H.S.Marulappa CW.1 08-11-2016
PW.4 N.Divakaraiah CW.10 08-11-2016
Documents marked for the prosecution:
Ex.P1 Photos of Auto PW.1 03-11-2016
Ex.P2 Mahazar PW.3 08-11-2016
Ex.P2(a) Signature of PW.3 PW.3 08-11-2016
Ex.P3 Complaint PW.3 08-11-2016
Ex.P3(a) Signature of PW.3 PW.3 08-11-2016
Material objects marked for the prosecution:
MO.1 Long
19 S.C.1137/2016
MO.2 Club
MO.3 Knife
MO.4 Club
MO.5 Rope
MO.8 One chilly powder packet
Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.